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September 9, 1999


Mr. David B. Casas
City Attorney
City of San Antonio
P.O. Box 839966
San Antonio, Texas 78283-3966

OR99-2507

Dear Mr. Casas:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127131.

The City of San Antonio (the "city") received a request for "all subpoenas issued during the past five years to the city regarding any agency, record, employee or elected official, current or former." You contend that grand jury subpoenas are records of the judiciary, and hence not subject to the disclosure requirements of the Public Information Act (the "act"). You also assert that responsive information is excepted from public disclosure by section 552.101 of the Government Code in conjunction with sections 20.02 and 20.16 of the Code of Criminal Procedure, and section 143.089(g) of the Local Government Code. You further contend that grand jury subpoenas relating to ongoing criminal investigations or prosecutions are excepted from disclosure under section 552.108 of the Government Code. You have submitted a representative sample of the responsive information.(1) We have considered your arguments and reviewed the submitted information.

We first address your contention that grand jury subpoenas are excepted from disclosure as records of the judiciary. Government Code section 552.003(B) excludes the judiciary from the act. The relevance of this provision to the requested information turns on what governmental body possesses the information. Information within the actual or constructive possession of a grand jury is not subject to the act. Open Records Decision No. 513 (1988). Further, when an individual or entity acts at the direction of a grand jury as the grand jury's agent, information prepared or collected by the agent is within the grand jury's constructive possession. Id. However, information not held or maintained in this manner is not exempt from the act's coverage and may be withheld only if one of the act's specific exceptions applies to the information. Id. Thus, a subpoena in the hands of a governmental body that is not a member of the judiciary is subject to the act. Consequently, the subpoenas in the possession of the city are subject to disclosure under the act.

While none of the subpoenas that you provide in your sample contain a court order prohibiting their disclosure, please note that subpoenas that contain such orders are excepted from disclosure by section 552.107(2) of the Government Code.

You argue that section 552.108 of the Government Code excepts grand jury subpoenas "that are currently the subject of ongoing criminal investigations or prosecutions." Section 552.108(a)(1) of the Government Code excepts certain information held by a law enforcement agency or prosecutor if its release would interfere with the detection, investigation, or prosecution of crime. Section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. Open Records Decision No. 474 at 4-5 (1987). You explain that some of the requested grand jury subpoenas include requests that the existence of the subpoena not be divulged. We are of the opinion that such language in a grand jury subpoena constitutes a request by a prosecutor to withhold the subpoena. Thus, we conclude that grand jury subpoenas that include requests that the existence of the respective subpoena not be divulged, may be withheld under section 552.108(a)(1) if they relate to pending investigations or prosecutions.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. You contend that sections 20.02 and 20.16 of the Code of Criminal Procedure make the requested subpoenas confidential. We disagree. Section 20.02 makes grand jury proceedings, records of things transpiring before a grand jury, and records of the testimony of those accused or suspected, secret. This requirement of secrecy "should be imposed only to the extent that it contributes to the effectiveness of the grand jury as that institution carries out its investigative and screening functions. Beyond that, however, the requirement of confidentiality serves no purpose." Stern v. State, 869 S.W.2d 614, (Tex. App.--Houston [14th Dist] 1994) (rehearing denied, writ denied, rehearing of writ or error overruled). Grand jury subpoenas are issued by district courts upon application by the attorney representing the state or the foreman of the grand jury. Crim. Proc. Code 20.11. Thus, they are not records of the proceedings of the grand jury, nor are they records of things transpiring before a grand jury, or records of the testimony of those accused or suspected. Grand jury subpoenas are therefore not made confidential by section 20.11 of the Code of Criminal Procedure. Section 20.16 of that code prohibits a grand jury witness from divulging "any matter about which he is interrogated, or any proceedings of the grand jury had in his presence." This section does not make grand jury subpoenas confidential.

You contend that subpoenas contained in police officer and fire fighter personnel files are made confidential by section 143.089 of the Local Government Code. That section provides in relevant part:

(a) The director [of the fire fighters' and police officers' civil service] or the director's designee shall maintain a personnel file on each fire fighter and police officer. The personnel file must contain any letter, memorandum, or document relating to:

. . .

(2) any misconduct by the fire fighter or the police officer if the letter, memorandum, or document is from the employing department and if the misconduct resulted in disciplinary action by the employing department in accordance with this chapter; and

(b) A letter, memorandum, or document relating to alleged misconduct by the fire fighter or police officer may not be placed in the person's personnel file if the employing department determines that there is insufficient evidence to sustain the charge of misconduct.

(c) A letter, memorandum, or document relating to disciplinary action taken against the fire fighter or police officer or to alleged misconduct by the fire fighter or police officer that is placed in the person's personnel file as provided by Subsection (a)(2) shall be removed from the employee's file if the commission finds that:

(1) the disciplinary action was taken without just cause; or

(2) the charge of misconduct was not supported by sufficient evidence.

. . .

(f) The director or the director's designee may not release any information contained in a fire fighter's or police officer's personnel file without first obtaining the person's written permission, unless the release of the information is required by law.

(g) A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file..

Local Gov't Code 143.089.

We first note that these provisions do not except information that is not maintained by a fire or police department. Copies of subpoenas that are maintained by other divisions of the city must be released unless otherwise excepted from disclosure. We next note that subsection (a)(2) of section 143.089 requires that information relating to employee misconduct be placed in the employee civil service file, if the misconduct resulted in disciplinary action. Moreover, Open Records Decision No. 562 (1990) held that section 143.089(g) merely imposes a procedural requirement that requestors must follow in order to obtain information contained in police officers' and fire fighters' civil service (subsection (g)) files. Subpoenas contained in such civil service files must be released unless they come within one of the act's exceptions to required public disclosure. Subpoenas that are exclusively maintained pursuant to Local Government Code section 143.089(g) are confidential and must be withheld pursuant to section 552.101 of the Government Code.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/ch

Ref: ID# 127131

Encl. Submitted documents

cc: Mr. John Ted
San Antonio xBRress-
P.O. Box 2171 San Antonio, Texas 78297-
(w/o enclosures)


Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

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